Matter of Bola v Bramer

[*1] Matter of Bola v Bramer 2018 NY Slip Op 51621(U) Decided on November 15, 2018 Supreme Court, Essex County Auffredou, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2018
Supreme Court, Essex County

In the Matter of the Application of Jessica Bola; JOSEPH BOLA and JEAN BOLA; ALEXANDER DESJARDINS; MATTHEW GEDEIKO; THE GEDEIKO FAMILY TRUST; JOHN L. MASON DECISION AND ORDER and KATHERINE A. MASON; DANIEL T. HUBBELL; MAX THWAITS and BETH THWAITS; AGNES WARD REALTY LPA; JEFFREY A. and MARIE ANNE WARD; JULIE WARD; SIDNEY J. WARD, Index No. CV17-0348 JR. TRUST; SIDNEY J. WARD III; and WARD RJI No. 15-1-2017-0204E LUMBER COMPANY, INC., Plaintiffs-, Petitioners,

against

Donna Bramer, ASSESSOR OF THE TOWN OF JAY; THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF JAY; THE TOWN OF JAY; BEATRICE A. PELKEY, AS TOWN CLERK OF THE TOWN OF JAY; ARCHIE DEPO, AS TOWN SUPERVISOR OF THE TOWN OF JAY; COUNTY OF ESSEX; AND THE AUSABLE FORKS CENTRAL SCHOOL DISTRICT, Defendants-, Respondents.



CV17-0348



APPEARANCES:

Whiteman Osterman & Hanna LLP, Albany (Christopher M. McDonald and Paul J. Buehler, III, of counsel), for plaintiffs-petitioners.

The Vincelette Law Firm, Albany (Daniel G. Vincelette and Stephen M. Almy, of counsel), for defendants-respondents.
Martin D. Auffredou, J.

Plaintiffs-petitioners ("petitioners"), own property and pay real property taxes in the Town of Jay, Essex County, New York. By notice and verified petition and complaint, petitioners commenced this hybrid action/proceeding pursuant to CPLR § 3001, Article 78 of the CPLR, Article 6 of the Public Officers Law (known as the Freedom of Information Law, or "FOIL"), and Article 7 of the Real Property Tax Law. The petition sets forth six causes of action. The first two concern alleged violations of FOIL and an award of reasonable attorneys' fees. The third and fourth causes of action seek a declaratory judgment that an instruction sheet and Assessor Residential Form 3-11 ("Form 3-11") be declared void and without legal basis and enjoining defendants-respondents ("respondents")[FN1] from utilizing the forms. The fifth and sixth causes of action involve challenges to real property tax assessments and alleged failure of respondents to grant real property tax exemptions.

By stipulation of partial settlement and order on consent ("order on consent"), dated September 4, 2018, the parties partially resolved the first and second causes of action and resolved the third and fourth causes of action in their entirety. The Court retained jurisdiction over the fifth and sixth causes of action and petitioners' claim for attorneys' fees. Petitioners now move for an award of reasonable attorneys' fees and costs and disbursements, under Public Officers Law § 89 [4].

In deciding the motion, the Court has reviewed and considered the following: the affidavit of Christopher M. McDonald, Esq., sworn to August 31, 2018, with exhibits, and petitioners' memorandum of law, dated August 31, 2018, in support of the motion; the affirmation of Daniel G. Vincellette, Esq., dated September 19, 2018, the affidavit of Donna Bramer, sworn to September 20, 2018, and respondents' memorandum of law, dated September 20, 2018, in opposition to the motion; and the reply affidavit of Christopher M. McDonald, Esq., sworn to September 27, 2018, and petitioners' memorandum of law, dated September 27, 2018, in further support of the motion.

The facts are straightforward. On March 3, 2017, petitioners presented a request under FOIL seeking copies of "all comparable sales compiled and/or used by the Town of Jay Assessor in conducting the 2017 town-wide reassessment." On March 8, 2017, respondent Assessor Donna Bramer timely responded to the FOIL request stating, "Please be advised that I will evaluate this request and within 20 business days inform you of my determination. We are in the process of requesting this information and will forward all documents that are deemed allowable to you as soon as we receive it."[FN2] The twenty day period expired without a further response from respondents. By letter dated May 3, 2017, petitioners filed an appeal contending that respondents' failure to respond within statutory time periods constituted a denial of the FOIL request.[FN3] Petitioners contend that the Court should apply Public Officers Law § 89 [4] [c] as amended. The Court finds no basis to do so. In the Court's view, application of the statute as amended, effective December 13, 2017, when the hybrid action/proceeding was commenced in August, 2017, would be unjust and inequitable.

Initially, the Court must determine whether the prerequisite has been satisfied, that is, whether petitioners have substantially prevailed. " 'A petitioner "substantially prevail[s]" under Public Officers Law § 89(4)(c) when [he or she] "receive[s] all the information that [he or she] requested and to which [he or she] is entitled in response to the underlying FOIL litigation" ' (Matter of Competitive Enter. Inst. v. Attorney Gen. of New York, 161 AD3d 1283, 1286, 76 N.Y.S.3d 640 [2018], quoting Matter of New York State Defenders Assn. v. New York State Police, 87 AD3d 193, 196, 927 N.Y.S.2d 423 [2011] ), . Significantly, the voluntariness of an agency's disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed (see Matter of Madeiros v. New York State Educ. Dept., 30 NY3d at 79, 64 N.Y.S.3d 635, 86 N.E.3d 527; Matter of Jaronczyk v. Mangano, 121 AD3d 995, 997, 996 N.Y.S.2d 291 [2014]; Matter of New York State Defenders Assn. v. New York State Police, 87 AD3d at 195—196, 927 N.Y.S.2d 423)." (Matter of Cobado v Benziger, 163 AD3d 1103, 1106 [3d Dept 2018].)

Here, as acknowledged in the order on consent, the records were ultimately disclosed. It is noteworthy that none of the records were disclosed prior to the commencement of the hybrid action/proceeding. Based on the record before the Court, it is reasonable to conclude that had it not been for petitioners initiating the litigation, the records would not have been disclosed (see Matter of New York Civ. Liberties Unionv City of Saratoga Springs, 87 AD3d 336, 339 ["On this record - - and in particularly in view of the fact that it was only through the use of the judicial process that petitioner was able to obtain the required disclosure and respondents evinced a clear disregard of the public's right to open government - ..."]). The Court concludes that petitioners have substantially prevailed.

The next inquiry is whether respondents had a reasonable basis to deny access to the records or whether respondents failed to respond within the statutory time limits. Respondents do not argue that they did not comply within the statutory time limits or that they had a reasonable basis for denial. Rather, respondents insist that noncompliance should be excused because, at the time the [*2]FOIL requests were made, the Town of Jay Assessor's Department was conducting a town-wide revaluation which left the department with no time to devote to other tasks. Respondents also maintain that the Town of Jay Assessor's Department is understaffed and the employees work part-time. In addition, respondents contend that due to the volume of the records sought in the March 3, 2017 FOIL request, it was impossible to produce the records within twenty days. These arguments are unpersuasive. Because no further response was offered after the March 8, 2017 initial response from respondent Assessor Donna Bramer, petitioners rightly took the silence as a denial of the FOIL request and exercised their right to appeal. Although respondents issued a timely response to that appeal, and accepted payment for the costs to reproduce the records, for reasons which remain unexplained, the records were not provided to petitioners and respondents again went silent. As preoccupied with the town-wide revaluation as respondents may have been, there is simply no justification for failing to acknowledge or respond to the May 24, 2017 FOIL request or to the appeal of the denial of that request. Concerning that request, counsel for respondents maintains that when he was retained in August, 2017 "for this proceeding," he determined that the Town did not possess any records responsive to the request and so advised petitioners' counsel. Thus, it was only due to the effort of respondents' counsel that petitioners received any semblance of response to the May 24, 2017 FOIL request. This still does not excuse respondents' failure to respond to the May 24, 2017 FOIL request within the statutory time limits. Remarkably, it was not until October 20, 2017, some seven and one half months after the March 3, 2017 FOIL request, that the respondents furnished any records to petitioners, and a complete response did not occur until January 17, 2018.[FN5] If the Town of Jay Assessor's Department is understaffed, or if responding to the FOIL requests was burdensome, respondents could have considered employing the option available under Public Officers Law § 89 [3] [a].[FN6] Nowhere do respondents explain why they could not have employed this option.

Concerning the March 3, 2017 FOIL request, the Court concludes that respondents failed to comply with the statutory time limits when a further response to petitioners was not provided following expiration of the twenty day period. In addition, failing to forward the records to petitioners or inform petitioners that the records were available after accepting payment was inexcusable, caused unnecessary delay, and ultimately forced petitioners to commence this action/proceeding. Concerning the May 24, 2017 FOIL request, by not acknowledging or responding to that request or to the appeal of the denial of that request, respondents failed to comply with the statutory time limits. Therefore, petitioners have demonstrated entitlement to an award of attorneys' fees under Public Officers Law § 89 [4] [c] (see Matter of Purcell v Jefferson County Dist. Attorney, 77 AD3d 1328, 1329 [4th Dept 2010]).

Next, the Court must determine the amount of reasonable attorneys' fees and costs to award. [*3]The determination is a matter of discretion for the Court (see, e.g., Shrauger v Shrauger, 146 AD2d 955, 956 [3d Dept 1989]; Hovanec Bldrs. & Devs. Corp. v Hines, 173 AD2d 951, 952 [3d Dept 1991]). The factors the Court must consider in determining the amount of reasonable attorneys' fees include 'the time, effort and skill required; the difficulty of the questions presented; the responsibility involved; counsel's experience, ability and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation' " (Hinman v Jay's Vil. Chevrolet, Inc., 239 AD2d 748, 749 [3d Dept 1997] quoting Shrauger).

In his affidavit in support of the motion, Christopher M. McDonald, Esq. avers that Whiteman Osterman & Hanna LLP devoted 94.4 hours of attorney time to the FOIL claims, with fees totaling $19,332.23. Detailed billing statements are attached to the affidavit, as well as a bill of costs. The affidavit describes the educational background, work experience and hourly rates charged for each attorney who provided legal services. The hourly rates charged range from a low of $155.00 to a high of $295.00.The Court finds the hourly rates to be reasonable based upon the experience levels of the attorneys, and the hourly rates billed are consistent with those customarily charged in the region.

Respondents argue that the attorneys' fees sought would amount to a windfall to petitioners as the Town of Jay is a municipality in Essex County that has limited resources and petitioners' counsel is a large law firm located in Albany, New York. Respondents also maintain petitioners' counsel assigned multiple attorneys to work on the file to "maximize billing." The Court does not find these arguments persuasive. Petitioners are entitled to be represented by counsel of their choosing (see, e.g., Luciano v Kennedy, 151 AD3d 957, 958 [2d Dept 2017]). In addition, the Court finds no reason to question the number of attorneys assigned to provide legal services.

Based on the record, there was no certainty of compensation nor is there any indication that attorneys' fees are contingent on a particular outcome. However, when considering the time, effort and skill required, the difficulty of the questions presented and the responsibility involved, the Court concludes an award of less than the fees sought is warranted. It was the failure by respondents to timely respond to the FOIL requests which caused petitioners to asserts the claims in the first and second causes of action. Respondents never asserted that the records, or any portion thereof, were exempt from disclosure by reason of a statutory exemption. Rather, respondents simply failed to respond. And, as found above, it was only by reason of initiation of the action/proceeding that petitioners were able to secure disclosure of the records, but even then, the records were not disclosed until months later. This necessarily meant petitioners' counsel had to invest significant time and effort to obtain the records, but a conclusion that difficult, complex legal issues were involved cannot be drawn.

Having considered the relevant factors, under the circumstances presented, a reduction by 1/3 is warranted. The Court awards petitioners reasonable attorneys' fees in the amount of $12,600.00, plus costs and disbursements in the amount of $550.00 [FN7] , for a total award of $13,150.00.

Accordingly, it is hereby

ORDERED that petitioners' motion for an award of reasonable attorneys' fees and costs incurred in this proceeding with respect to the Freedom of Information Law causes of action is granted, as hereinabove set forth; and it is further

ORDERED that within sixty (60) days of the date of service of this Decision and Order with Notice of Entry, respondents shall pay to petitioners, the sum of $13,150.00, representing the total amount of attorneys' fees and costs and disbursements awarded; and it is further

ORDERED that counsel for petitioners shall inform counsel for respondents who payment should be directed to.

The within constitutes the Decision and Order of this Court.

Signed this 15th day of November, 2018, at Lake George, New York.

ENTER.

___________________________________________

HON. Martin D. Auffredou

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1:For the purposes of this Decision and Order, "respondents" include all named respondents with the exception of Essex County and the Ausable Falls Central School District.

Footnote 2:Public Officers Law § 89 [3] [a] provides in part, "Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied....".

Footnote 3:Public Officers Law § 89 [4] [b] provides in part, "Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial." Public Officers Law § 89 [4] [a] provides in part, "...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity,...who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought." By letter dated May 18, [*4]2017, respondent Town Supervisor Archie Depo timely granted the appeal and advised petitioners that the records comprised 172 pages and the cost to reproduce the records was $43.00.On May 25, 2017, petitioners delivered a check to respondents for the reproduction costs and respondents cashed the check. However, the records were not forwarded to petitioners nor did respondents inform petitioners the records were available to them.

Meanwhile, on May 24, 2017, petitioners had presented a second FOIL request, this time seeking copies of local laws or resolutions pertaining to Form 3-11 and other records. Respondents did not acknowledge receipt of or respond to the second FOIL request. Taking respondents' non-response as a denial, petitioners presented an appeal on June 14, 2017. No response to the appeal was issued by respondents. Petitioners then commenced the instant hybrid action/proceeding on August 7, 2017.

On October 20, 2017, respondents' counsel sent petitioners' counsel records in response to the FOIL requests. By letter dated October 30, 2017, petitioners' counsel issued a response which described records that were not provided and, notably, indicated that the approximate amount of attorneys' fees petitioners incurred in connection with the FOIL portion of the Article 78 proceeding was in excess of $14,000.00, "and will continue to increase due to the ongoing work related to the FOIL portion of the proceeding." Having not received a response to that letter, petitioners' counsel wrote to respondents' counsel again on December 20, 2017.By letter dated January 17, 2018, respondents' counsel provided the remaining records.

In the order on consent, petitioners acknowledged that respondents have disclosed the records that are the subject of the first and second causes of action.

Petitioners now seek an award of $20,112.23 for reasonable attorneys' fees and costs incurred in prosecuting the proceeding.

Public Officers Law § 89 [4] [c] authorizes a Court to award attorneys' fees when certain conditions are satisfied (see Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 930 [2d Dept 2016]). "A court may award a reasonable attorney's fee and other litigation costs to a petitioner in a proceeding to review the denial of a FOIL request where the petitioner has 'substantially prevailed' in the proceeding, and '(i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time' (Public Officers Law § 89 [4] [c]). The award of attorney's fees is intended to ' "create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL" ' (Matter of New York Civ. Liberties Union v City of Saratoga Springs, 87 AD 336, 338, 926 NYS2d 732 [2011], quoting Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 492 at 5)." (Id. at 930-31.)

At the time this hybrid action/proceeding was commenced in August, 2017, Public Officers Law § 89 [4] [c] read as follows:

"The court in such a proceeding may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under [*5]the provisions of this section in which such person has substantially prevailed, when: (i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time."

Public Officers Law § 89 [4] [c] was subsequently amended by the New York State Legislature (see Laws 2017, Chapter 453, Section 1, effective December 13, 2017).[FN4] Public Officers Law § 89 [4] [c] currently reads as follows: "The court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access."

Footnote 5:Respondents' argument that petitioner Desjardins independently sought and obtained similar records in April, 2017 is not persuasive.

Footnote 6:Public Officers Law § 89 [3] [a] provides, "An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article."

Footnote 7:The Court is not awarding the full amount of costs and disbursements sought by petitioners.